An employee has done something totally unacceptable in the workplace and you are not pleased about it; in fact, you're furious. What do you do?Well you don't knee-jerk for a start. Unless you actually witnessed the event, things may not be all that they seem. So you must give them the benefit of the doubt and you must follow your disciplinary procedure which, as a minimum, should follow ACAS guidelines.

(If you don't have a formal discipinary procedure, we can help you produce one, together with other essential policies. It's a legal requirement to have formal disciplinary and grievance procedures if you employ staff.)

Conduct investigation which may involve inviting employee (unaccompanied) to an investigation meeting

If you decide to proceed with disciplinary proceedings, invite the employee (accompanied if they wish) to a disciplinary hearing. At the disciplinary meeting go through all the evidence objectively and allow the employee to present his case

After the meeting decide whether disciplinary action is appropriate, and advise the employee in writing and notify them of their right to appeal

Hear the appeal as soon as possible and notify them of outcome

1. InvestigationThe first thing you need to do is notify the employee that in accordance with your disciplinary procedure you are commencing an investigation. Then you should obtain statements from all parties as to what actually happened. If you need an appropriate letter, or a line manager briefing, we can assist. You may wish to invite the employee to an investigatory meeting to obtain his/her side of the story. At this stage it is just fact finding, and they are not entitled to be accompanied.

2. Disciplinary meetingOnce you have obtained everyone's account of what actually happened, you should invite the employee to a meeting to discuss the offence. Keep detailed notes of everything and make sure you provide the employee with copies of all the evidence prior to the meeting taking place.

You must remain objective at all times and should not reach a decision about the outcome of the meeting before it has taken place. If the meeting gets heated, adjourn for a while to allow everyone to calm down.

3. Disciplinary ActionAfter the meeting, decide what action, if any, you wish to take. This could be a verbal warning, final warning or, in the case of gross misconduct, dismissal. Advise the employee in writing of the decision. Also advise them of their right to appeal and how they should do this.

4. AppealAny appeal should be heard as early as possible, ideally by a different manager, who must reach their own conclusion based on the facts of the original hearing and the basis of the appeal. If you are a small company, then the same manager may also hear the appeal - again, keep an open mind.

After the appeal, notify the employee of the decision and the consequences.

Be Fair and Objective

At all stages, be fair and remain objective, follow your disciplinary procedure (or the the ACAS code) and keep detailed records of everything.

Failure to conduct an objective investigation will put your company at a severe disadvantage if it ever goes to Tribunal. And you will almost certainly fail miserably if it's proven that you had already decided an outcome before following the disciplinary procedure.

Many employers issue Contracts of Employment or Statements of Terms and Conditions that include their Disciplinary Policy and Procedure. Whilst it's great that they've given consideration to this, it's not so great that they've made it "contractual".

Up until recently, in these circumstances, the company would be guilty of Breach of Contract, with potentially very serious consequences, if they failed to follow their Disciplinary Procedure. However, a recent tribunal, which went to appeal and further appeal, has determined that if a company fails to follow a disciplinary procedure that is contractual (ie contained in the contract of employment), they won't be guilty of Breach of Contract - just guilty of failing to follow their own disciplinary procedure.

This is good news as the penalty is potentially less severe but, in an unfair dismissal claim, they could still find themselves having to pay out over £70k! This could literally put a small company out of business - but a Tribunal wouldn't be interested in that... just the facts of the case before them.

So, yes of course you must have a Disciplinary Policy and Procedure. But keep it as a separate employment policy - non contractual. It will still need to be followed during disciplinary proceedings, but you will be free to amend the procedure in line with the needs of your business, just as long as it follows ACAS guidelines as a minimum.

Caution! ALWAYS follow your company's procedures - to the letter! You could be heavily penalised if you don't.

Author

Hi, I'm Barbara, owner of The Back Office. I've had a portfolio career... Accounts, Office Management, Executive PA Company Director, HR Manager and Consultant - across a diverse range of companies of all shapes and sizes. Because of my eye for detail and penchant for nit-picking, I was often tasked with due diligence during acquisitions and takeovers and managed copious amounts of paperwork in extensive corporate and private litigation.I also lectured in Business Studies and Secretarial Skills for 10 years on a part time basis for a college in West London where I'd previously studied.I've had some amazing and colourful experiences during my career, gained a great skill set and considerable insight... Not much surprises me! These days I enjoy bringing all these skills together to provide comprehensive support to business owners and individuals, who can benefit from my skills and experience.I love walking, gardening, cooking, reading and travel, and although I'm a totally grounded person, I like to have some fun in the process.